Leelavathi W/o Late A. R. Lokanath v. Prathima W/o Raghu @ Raghavendra D/o Siddagangaiah
2020-03-05
JOHN MICHAEL CUNHA
body2020
DigiLaw.ai
JUDGMENT : 1. Heard the learned counsel for the appellants as well as the respondents. 2. I.A. No.1/2019 is filed under Section 5 of the Limitation Act seeking to condone the delay of 2197 days in preferring the appeal. The cause shown in the affidavit reads as under: “(6) I state that, based on the preliminary decree passed by the Trial Court the respondents herein have initiated the final decree proceedings in FDP No.3/2014, wherein, the Commissioner has already been appointed and Commissioner Report has received by the Trial Court. Since, I have under the impression and hope that, the respondents will set right and resolved all matrimonial disputes amicably, I have not preferred the appeal against the impugned Judgment and Decree immediately. Recently I came to know that, the respondents have took the undue advantage of granting share to the suit property, they have claiming share in the suit property though they are receiving maintenance from me, hence we decided to challenge the Judgment and Decree and filed the above appeal. Hence, the delay is caused in filing the above appeal. (7) I state that, since, matrimonial disputes are pending between me and my wife the 1st respondent herein, before the Family Court and also criminal case before the Magistrate Court, we have under impression that, the dispute between me and 1st respondent will be resolved amicably and due to the said reason we have not challenged the Judgment and Decree in time and further in view of the pendency of the above said cases, we have tried for settlement of the dispute with the help of well wishers. However, the respondents have not agreed for settlement to resolve all the disputes. And further the respondents have proceeded with the final decree proceedings in order to get final decree in their favour. Hence, we filed the above appeal.” 3. A reading of the above averments goes to show that the appellants are not aggrieved by the preliminary decree passed by the Trial Court, rather the intention of the appellant No.2 is to compel respondent No.1 to settle the matrimonial proceedings, to his terms. The said reason even if true, cannot be accepted as sufficient cause for condonation of inordinate delay of 2197 days in filing this appeal. 4.
The said reason even if true, cannot be accepted as sufficient cause for condonation of inordinate delay of 2197 days in filing this appeal. 4. From the objection statement filed by respondents, it can be gathered that the decree passed by the Trial Court was put into execution in FDP 3/2014. In the said proceedings, Commissioner was appointed and a Report was submitted for division of the property in terms of preliminary decree and based on the Commissioner’s Report, a final order is passed on 21.06.2016. Though it is submitted that the said order is setaside in writ petition No.35379/2019 dated 28.08.2019, yet the facts narrated above indicate that the petitioners were participating in this proceedings since 2014 and the impugned decree was within their knowledge. As such there is no justifiable reason to condone the inordinate delay of 2197 days in preferring the appeal. Appellants have failed to make out sufficient cause to condone this delay. As a result, I.A. No.1/2019 for condonation of delay is dismissed. Consequently, appeal is dismissed. 5. In view of dismissal of this appeal, I.A. No.2/2019 does not survive for consideration and the same is also dismissed.